Tuesday, April 20, 2010Last Update: 10:56 AM PT

Supreme Court Tackles Restitution Deadline

By ANNIE YOUDERIAN

WASHINGTON (CN) - The Supreme Court on Tuesday peppered attorneys over whether a judge can order restitution more than 90 days after sentencing in the case of an assaulted hitchhiker. "So you have a victim ... who is beaten to a pulp by a defendant," Justice Samuel Alito told the attacker's attorney, "and you say that if the judge makes a mistake, it's just too bad for the victim." For the first time since 1990, the justices are interpreting federal restitution law in the case of Brian Dolan, who beat up a hitchhiker and left him on the side of the road, bleeding, unconscious and with several broken bones. The victim racked up more than $100,000 in medical bills. Dolan was sentenced to one year and nine months in prison, with restitution to be determined later, "pending the receipt of additional information." He was eventually slapped with a $104,650 restitution order, nearly six months after the 90-day deadline established by the Mandatory Victims Restitution Act. Dolan's court-appointed attorney, Pamela Karlan, urged the justices to overturn the restitution order, saying the district court had no authority to order restitution more than 90 days after sentencing. Toby Heytens, arguing for the government, acknowledged that the judge missed the deadline, but said it's up to Congress -- not the courts -- to set the consequences of a court's failure to act. In the government's view, the sentencing order and the restitution order can act as two separate, appealable orders. In Karlan's view, there's "one sentence, one appeal." Restitution is part of the sentencing, she argued, and the court has 90 days to complete the process. If the judge waits too long, the victim gets nothing. Justice Alito said Karlan's argument appeared to contradict Congress' intent. "The victim gets nothing because the judge waited too long," he said. "Do you think that is what Congress had in mind?" Justice Anthony Kennedy picked up the line of questioning, saying a rigid deadline is "unfair to the victim" and "inconsistent with the whole design and thrust of the Victims Act." But Justice Sonia Sotomayor pointed out that, without a deadline, the law might be an "endless statute." Justice Antonin Scalia chimed in. "It's sort of a ridiculous consequence that it's five years later and the judge who tried the original case is dead," he said. Justice Stephen Breyer seemed to side with the government, but asked Heytens to explain how a late restitution order wouldn't "muck up the rules of appeal." The question, and others like it, prompted Justice Scalia and Heytens to thumb through heavy law books for the exact phrasing of statutes and how the provisions interact with the appellate process. Heytens told Breyer that a rigid rule would be worse, because it would routinely force defendants to wait three months after sentencing to appeal. The high court is expected to rule in Dolan v. U.S. in early summer.